Reller v. Ankeny

• Decision Date: 04 March 1955
• Docket Number: No. 33652,33652
• Parties: Merril R. RELLER, Appellant, v. Harry R. ANKENY, Appellee.
• Court: Nebraska Supreme Court

Page 686

68 N.W.2d 686

160 Neb. 47

Merril R. RELLER, Appellant, v. Harry R. ANKENY, Appellee.

No. 33652.

Supreme Court of Nebraska.

March 4, 1955.

Syllabus by the Court.

1. The forms of pleading in civil actions in courts of record and the rules by which their sufficiency may be determined are those prescribed by the civil code.

2. The civil code as a statute complete in all its parts should be so construed as to make all of its parts harmonize with each other and render them consistent with its general scope and object.

3. It is a mandatory rule of appellate procedure that any question, except jurisdiction of the court, must be presented to or passed on by the trial court to be available for consideration and determination in this court.

4. If the adjudication of a cause by the district court is the only one that is permitted by the record the judgment will not be disturbed because of an error of that court.

5. A demurrer to a petition which alleges that certain statements published by defendant concerning plaintiff were false and maliciously made admits the falsity of the statements and that they were motivated by malice.

6. An action for libel must be commenced within 1 year of the publication of the defamatory matter, the basis of the action.

7. An exhibit incorporated in a pleading is a part of it for all purposes in the case and it may be considered in deciding if the pleading states a cause of action or a defense.

8. A judge performing a judicial function is absolutely privileged to publish false and defamatory matter in the performance of such function if the publication has some relation to the matter before him.

9. It is not necessary to the privilege that the defamatory matter be relevant or pertinent to an issue before the court in a judicial proceeding. It is only required that it have some reference to the judicial function which the judge is performing, and the protection is not lost by the mere fact that the defamatory publication is an indiscretion or a display of personal antagonism on the part of the judge or that it is not pertinent to the subject of the inquiry if it is not altogether disconnected therefrom.

John McArthur, Lincoln, for appellant.

Clarence S. Beck, Atty. Gen., Homer L. Kyle, Asst. Atty. Gen., for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.

BOSLAUGH, Justice.

This litigation concerns damages alleged to have been caused appellant on account of the malicious composition and publication of defamatory and libelous statements by appellee of and concerning appellant.

The charges made in the petition are: That appellant has resided in Lancaster County during the years of his life, has a large acquaintance therein, is licensed to practice law in Nebraska, is actively engaged in the practice of his profession, and the greater part of his professional business is in the district court for the Third Judicial District of Nebraska, the area of which is the territory of Lancaster County; that appellee resides in Lincoln and is a judge of said district court; that on or about April 23, 1954, appellee maliciously composed and published of and concerning appellant, scandalous, defamatory, and libelous statements contained in a writing, a copy of which is made a part of the petition as Exhibit A; that a writing referred to as Exhibit 10 in the writing identified as Exhibit A and made a part of the petition is another false and defamatory publication made by appellee of and concerning appellant July 20, 1950, a copy of which is made a part of the petition as Exhibit B; that the statements were false and the effect of them, if true, would be to cause the disbarment of appellant and subject him to severe penalties provided by law, including fines and imprisonment; and that appellant had been damaged by the statements contained in Exhibit A in a stated amount. The statements made a part of the petition are lengthy and only parts of them will be recited to the extent proper in the discussion of the matters presented for decision.

Appellee interposed a motion for an order dismissing the petition of appellant because the facts stated in it were not sufficient in law to state a cause of action against appellee, it being apparent, as alleged in the motion, from facts stated in the petition that the alleged libelous matter therein referred to was privileged. The motion was sustained and a judgment of dismissal rendered. This appeal contests the legality of the action of the district court.

Appellant insists that there is no procedure in this state that permits a motion to dismiss a petition to be employed to test its sufficiency to state a cause of action, and that a litigant does not have an option to question the sufficiency of a pleading to state a cause of action by either a motion to dismiss or a general demurrer. In State ex rel. Thompson v. Donahue, 91 Neb. 311, 135 N.W. 1030, 1032, Ann.Cas.1913D, 18, a ruling of the district court on a pleading designated a motion to quash was sustained by this court because no objection to it was made and counsel for the parties and the court treated the motion as a general demurrer. The opinion in that case says: 'A motion was filed by the respondent which was treated by the counsel and the court as a general demurrer to the information. This motion was overruled, and the respondent now contends that this ruling was wrong, and that the information fails to state any cause of action against the respondent.' In State ex rel. Johnson v. Consumers Public Power Dist., 142 Neb. 114, 5 N.W.2d 202, it was concluded that a motion to dismiss could not, over an objection of the adverse party, be employed to test the sufficiency of the pleading to state a cause of action; that such a motion and a general demurrer were not interchangeable; and that a timely objection to a motion for such a purpose was not a captious objection but was substantial and meritorious because the results of the two procedures involved fundamental differences. The sustaining of a demurrer does not end the case in the court in which it is pending. The statute assures the adverse litigant the right to amend his pleading, a refusal of which presents a question for judicial review. If a motion to dismiss is granted the case is ended. Any amendment thereafter is a judicial grace and not a right. It is said in that case: 'The forms of pleading in civil actions in courts of record and the rules by which their sufficiency may be determined are those prescribed by our Civil Code. * * * Our Civil Code as a statute complete in all its parts, should be so construed as to make all of its parts harmonize with each other and render them consistent with its general scope and object.'

The postulate of appellee that a motion to dismiss a petition on the ground that it does not state a cause of action is authorized by the procedure of this state may not be accepted. The five decisions of this court relied upon to sustain this argument contain nothing to support it. They are properly characterized in Feight v. Mathers, 153 Neb. 839, 46 N.W.2d 492, 494: 'But in the foregoing cases either the litigant elected to stand on the pleadings at which the order was directed, continued to file pleadings that were subject to the same criticism, or filed pleadings which sought to circumvent the effect of the court's order.' State ex rel. Johnson v. Consumers Public Power Dist., supra, repudiates the argument of appellee on this subject. A motion to dismiss may not be employed, when opposed by proper and timely objection, to perform the function of a demurrer.

In the pending case appellant made no objection to or assault upon the motion to dismiss filed by appellee or to the use of it to test the sufficiency of the petition in the case to state a cause of action. Appellant rather acquiesced in and consented that it should be employed for the purpose intended by appellee and the district court by its action approved of that procedure. The record recites that this cause came on to be heard upon motion of appellee to dismiss the petition of appellant, and by agreement of appellant and the attorney for appellee it was submitted to a judge of the district court; and that briefs were filed, and on due consideration the court sustained the motion and dismissed the case. A litigant may not effectively complain of a course of action he induced or in which he concurred. Appellant did not seek the right to amend his petition in that court. His complaint that the motion to dismiss the petition was an improper and unauthorized pleading and that it should have been a demurrer comes too late. It was necessary for him to make that objection in a proper manner in the trial court to have it considered in this court. It is a rule of practice that any question, except jurisdiction of the court, must be presented to or passed on by the trial court to be available for consideration and determination in this court. Badura v. Lyons, 147 Neb. 442, 23 N.W.2d 678; Dodge v. Galusha, 151 Neb. 753, 39 N.W.2d 539. If the conclusion of the district court that the petition did not and could not be made to state a cause of action was correct the appellant was not prejudiced by the order sustaining the motion or the judgment of that court. A case will not be reversed for an error of the trial court if the complaining party is not entitled to succeed in any event. James v. Hogan, 154 Neb. 306, 47 N.W.2d 847.

The pleading of appellee to the petition of appellant was an admission that the statements and insinuations shown by Exhibits A and B of and concerning appellant of which he complains in the petition were false and that they were actuated by malice. Shumway v. Warrick, 108 Neb. 652, 189 N.W. 301. The position of appellee in this litigation is that though the language used concerning appellant is libelous appellee, because of the office he occupies and the circumstance...